Difference between revisions of "Employment Law Issues (9:V)"

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However, claimants in civil court should be aware that an employee has a common law duty to mitigate his or her losses. The employee need only take reasonable steps to do so; searching for similar work is sufficient.

Because of the requirement to mitigate, the employee may have to take another job the employer offers, as long as the new job is not at a lower level than the previous one, and the change does not amount to constructive dismissal. Similarly, a dismissed employee may have to accept an employer’s offer to work through the notice period (''Evans v Teamsters Local Union'', 2008 SCC 20). Retraining may be considered part of mitigation if it is to enter a job field with better prospects. This applies where an employee tries and fails to obtain alternate suitable employment (''Cimpan v Kolumbia Inn Daycare Society'', [2006] BCJ No 3191).

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In many cases, the duty to mitigate may require a constructively dismissed employee to stay on the job while seeking other employment (''Cayen v Woodwards Stores Ltd'' (1993), 75 BCLR (2d) 110 (CA)).

An employee does not have to take every action possible to mitigate. Employees are not required to return to a position where the fundamental terms of their job have changed or where they have been maligned such that the relationship cannot be restored. Accusations of dishonesty in negotiations or radically limited and uncertain terms in offers may result in reemployment being found to be unreasonable. The employee is not expected to act in the employer’s best interest to the detriment of their own interests. For example, if an employee was ill at the time of dismissal they are not required to make strenuous efforts to find new employment. Similarly, an employee in the late stages of pregnancy may not be required to seek new employment until several months after the birth of their child. The employee’s perception of what is reasonable is usually given more weight than that of the employer.

=== 15. Employment Insurance Payback ===

If an employee receives damages for wrongful dismissal, this money is treated as earnings, and the employee will be required to pay back the appropriate amount of EI benefits received while waiting for the court case to be heard (EI benefits are not deducted from the amount of the damage award). Note that the employee may be able to receive the EI benefits back again if they are still unemployed and searching for work after the period covered by the severance award; call Service Canada at 1-800-206-7218 for further details if this situation may apply to the employee.

=== 16. Frustration of Contract ===

If the contract becomes impossible to perform through no fault of the employee or the employer, then the contract is frustrated, and may be terminated without liability. The contract must be impossible to perform, not merely less profitable. The impossibility of performance must be unforeseen, there must be no alternative to termination, and termination must not be self-induced. Frustration of contract is a separate ground for termination of contract, separate from just cause, which is a breach of the employment contract by the employee.

Frustration normally arises in cases of long term disability where the employee has been off work for 1 or 2 years. Courts will consider whether the worker is likely to be able to return to work in the reasonably foreseeable future, see ''Hydro-Quebec v Syndicat des employe-e-s de techniques professionnelles et de bureau d`Hydro-Quebec'' (2008 SCC 43) and ''Naccarato v Costco'' (2010 ONSC 2651).

If the employee suffers a serious, permanent, debilitating illness or injury, this could frustrate the contract; see ''Wightman Estate v 2774046 Canada Inc'', 2006 BCCA 424. However, note that in any case where an employee is dismissed due to a disability, there may be a case at the Human Rights Tribunal; the employer must have a bona fide occupational requirement that cannot be met by the employee due to their disability, and the employer must follow a proper process to attempt to accommodate the employee, in order to avoid liability. See [[Governing Legislation and Resources for Human Rights (6:I) | Chapter 6: Human Rights]] for additional details.

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@@ Line 788: / Line 788: @@
 However, claimants in civil court should be aware that an employee has a common law duty to mitigate his or her losses. The employee need only take reasonable steps to do so; searching for similar work is sufficient.
 Because of the requirement to mitigate, the employee may have to take another job the employer offers, as long as the new job is not at a lower level than the previous one, and the change does not amount to constructive dismissal. Similarly, a dismissed employee may have to accept an employer’s offer to work through the notice period (''Evans v Teamsters Local Union'', 2008 SCC 20). Retraining may be considered part of mitigation if it is to enter a job field with better prospects. This applies where an employee tries and fails to obtain alternate suitable employment (''Cimpan v Kolumbia Inn Daycare Society'', [2006] BCJ No 3191).
-p9-38
+In many cases, the duty to mitigate may require a constructively dismissed employee to stay on the job while seeking other employment (''Cayen v Woodwards Stores Ltd'' (1993), 75 BCLR (2d) 110 (CA)).
+An employee does not have to take every action possible to mitigate. Employees are not required to return to a position where the fundamental terms of their job have changed or where they have been maligned such that the relationship cannot be restored. Accusations of dishonesty in negotiations or radically limited and uncertain terms in offers may result in reemployment being found to be unreasonable. The employee is not expected to act in the employer’s best interest to the detriment of their own interests. For example, if an employee was ill at the time of dismissal they are not required to make strenuous efforts to find new employment. Similarly, an employee in the late stages of pregnancy may  not be required to seek new employment until several months after the birth of their child. The employee’s perception of what is reasonable is  usually given more weight than that of the employer.
+=== 15. Employment Insurance Payback ===
+If an employee receives damages for wrongful dismissal, this money is treated as earnings, and the employee will be required to pay back the appropriate amount of EI benefits received while waiting for the court case to be heard (EI benefits are not deducted from the amount of the damage award). Note that the employee may be able to receive the EI benefits back again if they are still unemployed and searching for work  after the period covered by the severance award; call Service Canada at 1-800-206-7218 for further details if this situation may apply to the employee.
+=== 16. Frustration of Contract ===
+If the contract becomes impossible to perform through no fault of the employee or the employer, then the contract is frustrated, and may be terminated without liability. The contract must be impossible to perform, not merely less profitable. The impossibility of performance must be  unforeseen, there must be no alternative to termination, and termination must not be self-induced. Frustration of contract is a separate  ground for termination of contract, separate from just cause, which is a breach of the employment contract by the employee.
+Frustration normally arises in cases of long term disability where the employee has been off work for 1 or 2 years. Courts will consider whether the worker is likely to be able to return to work in the reasonably foreseeable future, see ''Hydro-Quebec v Syndicat des employe-e-s de techniques professionnelles et de bureau d`Hydro-Quebec'' (2008 SCC 43) and ''Naccarato v Costco'' (2010 ONSC 2651).
+If the employee suffers a serious, permanent, debilitating illness or injury, this could frustrate the contract; see ''Wightman Estate v 2774046 Canada Inc'', 2006 BCCA 424. However, note that in any case where an employee is dismissed due to a disability, there may be a case at the Human Rights Tribunal; the employer must have a bona fide occupational requirement that cannot be met by the employee due to their disability, and the employer must follow a proper process to attempt to accommodate the employee, in order to avoid liability. See [[Governing Legislation and Resources for Human Rights (6:I) | Chapter 6: Human Rights]] for additional details.
+p9-43

Difference between revisions of "Employment Law Issues (9:V)"

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